The opinion of the court was delivered by: VICTOR Marrero, United States District Judge
A. REMOVAL OF ANTONIA AND HER SIBLINGS.....2
B. FAMILY COURT PROCEEDINGS AFTER THE REMOVAL.....5
C. ANTONIA'S STAY AT THE CHILDREN'S CENTER.....8
1. Conditions of the Children's Center.....8
2. Antonia's Stay at the Children's Center from January 22-23, 2003.....12
D. ANTONIA'S TRANSPORTATION TO THE FOSTER HOME.....24
E. TIMING OF THE INJURY.....27
F. ANTONIA'S STAY AT THE FOSTER HOME.....28
1. Phone Conversation Between Seda and Cartagena.....29
2. Events on January 25, 2003.....33
IV. LEGAL STANDARD.....36
V. DISCUSSION OF CLAIMS ASSERTED AGAINST CITY DEFENDANTS.....37
A. CLAIMS ARISING FROM ANTONIA'S REMOVAL FROM HER PARENTS' CUSTODY.....37
1. Rooker-Feldman's Procedural Requirements Are Met.....39
2. Rooker-Feldman's Substantive Requirements Are Met.....44
B. QUALIFIED IMMUNITY AND CLAIMS AGAINST KINSEY, RIVERA, AND VORHEES......53
C. LIABILITY FOR INJURY TO ANTONIA AT ACS FACILITY UNDER COUNT TWO.....54
1. Kinsey, Rivera, and Vorhees.....61
3. Unnamed Defendants.....66
D. LIABILITY FOR INJURY TO ANTONIA AT ACS FACILITY UNDER COUNT FOUR......68
1. Whether the City Can Be Liable Absent a Constitutional Violation by a Named Defendant......69
2. Whether the Constitutional Violations Were a Result of an Official Policy or Custom .....71
a. Inadequate Training.....73
b. Inadequate Supervision.....79
c. Inadequate Hiring.....83
3. State Law Claims.....84
E. CITY LIABILITY FOR FOSTER AGENCY DEFENDANTS' ACTIONS.....89
VI. DISCUSSION OF CLAIMS ASSERTED AGAINST FOSTER AGENCY DEFENDANTS.....90
A. WHETHER PHILLIPS AND GREEN HAVE STANDING TO BRING INDIVIDUAL CLAIMS UNDER § 1983.....91
B. SECTION 1983 CLAIMS.....95
1. Whether CHB and Seda Were Acting under Color of State Law.....96
2. Whether CHB and Seda Had the Requisite Deliberate Indifference.....101
C. STATE LAW CLAIMS.....107
1. Whether CHB and Seda Acted Negligently.....108
2. Proximate Cause.....110
3. Qualified Immunity under Social Services Law § 419.....114
Plaintiff Antonia Phillips ("Antonia") by her parents, Gertral Green ("Green") and Antonio Phillips ("Phillips"), as well as Green and Phillips individually (collectively, "Plaintiffs"), brought this action asserting federal constitutional and state law violations. The case arose out of the removal of Antonia from Green's and Phillips's custody by New York City employees and the severe injuries Antonia sustained allegedly after her removal, either during her stay at a New York City facility for children awaiting placement in a foster home, or during her subsequent placement in a foster home. Plaintiffs have sued (1) the City of New York (the "City") and several of its employees (collectively, the "City Defendants") who were involved in the decision to remove Antonia from her parents' custody and who cared for her prior to foster care placement; (2) Catholic Home Bureau ("CHB"), a private, not-for-profit foster care agency that contracts with the City to provide foster care placement services, and its employee Maria Seda ("Seda") (collectively, the "Foster Agency Defendants"); and (3) Cielo Cartagena ("Cartagena"), the foster mother with whom Antonia was placed in foster care.*fn1
The City Defendants and the Foster Agency Defendants have each moved for summary judgment. For the reasons set forth below, the motions are granted in part and denied in part.*fn2
A. REMOVAL OF ANTONIA AND HER SIBLINGS
Antonia was born on May 17, 2002 to Green and Phillips.
On September 9, 2002, Green informed the staff at the Baruch Houses, where she then resided with Phillips, Antonia, and her two other children, Alicia (born June 30, 1998) and Mykle (born July 17, 1997), that Phillips had hit Mykle with a belt, causing marks. Staff at the Baruch Houses contacted the City's Administration for Children's Services ("ACS"), and on September 11, 2002, an ACS caseworker filed a petition for neglect against both Green and Phillips in Manhattan Family Court. On November 18, 2002, Family Court Judge Sara P. Schechter ("Judge Schechter") issued an order (the "November 18, 2002 Order") determining that Phillips had used excessive corporal punishment and provided inadequate guardianship. Judge Schechter also issued an Order of Protection directing Phillips to stay out of the home and away from the children. The November 18, 2002 Order granted an "adjournment in contemplation of dismissal," paroling the children to Green under ACS supervision on the condition that she comply with all court directives, including enforcing the Order of Protection and attending counseling and parenting classes.*fn4 Shortly thereafter, the case was assigned to an ACS court-ordered supervision unit and defendant Kakilia Kinsey ("Kinsey") was assigned as ACS caseworker.
In December 2002 and January 2003, Kinsey documented growing concerns about Green's care of the children, specifically: that she had given Antonia away to another person; that she claimed to be employed at a Payless Shoe store but that the manager had never heard of her and there was no record of Green in the company's computer; that Phillips had visited with the children despite the Order of Protection; that Green was smoking marijuana in the apartment; that Antonia was allegedly staying for a few days with godparents, who denied caring for her; and that Green did not produce Antonia at ACS's request. Although Plaintiffs do not dispute that Kinsey documented these concerns, they dispute the "validity" of her concerns. However, Plaintiffs do not cite to any evidence to support their version of this dispute in accordance with Federal Rule of Civil Procedure Rule 56(e) and Local Rule 56.1(d).
On the afternoon of January 22, 2003, ACS convened a meeting after learning that Green had given Antonia away to another person, Raquel Simmons ("Simmons"), and that Green had called the police to accuse Simmons of kidnapping. The meeting was attended by Green, Antonia, Simmons, Kinsey, defendant ACS Supervisor II Jesus Rivera ("Rivera"), defendant ACS Child Protective Manager Kim Vorhees ("Vorhees"), and others. At the meeting, Green and Simmons exchanged verbal insults, and the two women gave differing accounts of how long Simmons had been caring for Antonia: Green said a short time, while Simmons said since October 2002. That meeting caused Vorhees to become concerned about violations of the November 18, 2002 Order, the whereabouts of Antonia, and the ability of ACS to comply with the November 18, 2002 Order and supervise the Green home when the children were not there. After consultation with an ACS deputy director, Vorhees made the decision to remove all three children from Green's care. This decision was made on that day, sometime between 5:00 p.m. and 6:30 p.m.
B. FAMILY COURT PROCEEDINGS AFTER THE REMOVAL
On January 24, 2003, a preliminary hearing occurred in Family Court, after which Judge Schechter signed an order (the "January 24, 2003 Order") directing temporary removal of the children based on Green's failure "substantially to observe the terms of [the November 18, 2002] order." (Order dated Jan. 24, 2003, attached as Ex. D to Affidavit of Suzanne M. Halbardier, dated Dec. 2, 2005 ("Halbardier Aff."), at FC0131;*fn5 see also Def. Rule 56.1 Statement ¶ 12.)
Plaintiffs dispute that Green was given notice of the January 24, 2003 proceedings. Although the transcript of the hearing indicates that Green's counsel was present, Green herself was not, and Green's counsel stated during the hearing that her client did not know she was supposed to be in court that day. Neither party has offered any explanation as to how Green's counsel, but not Green herself, received notice of the hearing, or as to why Green's counsel did not inform her of the proceeding if she was aware that Green did not know about it. The City Defendants agree that Green should have received notice, but contend that this requirement was satisfied because Rivera gave her oral notice at the time of Antonia's removal that they were going to court the next day and that she had to "show up" "in order to have any chance upon (sic) getting her child back." (City Def. Rule 56.1 Response ¶ 6; Deposition of Jesus Manuel Rivera, dated Feb. 7, 2005 ("Rivera Dep."), attached as Ex. F to Halbardier Aff., at 178.) According to Plaintiffs, ACS policies require, upon removal of a child from custody, immediate written notice in the form of a "701B notice," which gives the parent or custodian the right to a hearing by the next court business day following removal.*fn6
Plaintiffs also contend that the hearing should have been conducted on January 23, 2003, not January 24, 2003. Plaintiffs contend that ACS had a policy, mandate, guideline, or regulation that a petition was to be filed within 24 hours after an emergency removal without a court order. Thus, since the removal was carried out on Wednesday January 22, 2003, the petition should have been filed no later than Thursday, January 23, 2003. Rivera testified that such a petition should be filed within 24 hours or the next business day. The City Defendants agree that ACS workers were directed to go to court within 24 hours but dispute that this was a "regulation" or "mandate," pointing out that the relevant statute in 2003 required a hearing within three days. The City Defendants also point out that Kinsey did go to court on Thursday, January 23, 2003, but that a delay ensued, allegedly on account of confusion as to which type of petition needed to be filed, thus causing the hearing to occur on Friday, January 24, 2003 instead. The City Defendants also dispute that Judge Schechter would have made any different determination on Thursday than she would have on Friday.
After further hearings and fact finding, Judge Schechter signed an order on March 28, 2003, finding that Green had indeed violated the terms of the November 18, 2002 Order by giving Alicia and Antonia to caretakers without informing ACS, actively misrepresenting the children's whereabouts to ACS, and smoking marijuana in the children's presence. On April 8, 2003, the Family Court signed an Order of Neglect against Green. The children remain in foster care.
C. ANTONIA'S STAY AT THE CHILDREN'S CENTER
At 8:40 p.m. on the evening of January 22, 2003, Rivera and Kinsey brought Antonia and her siblings to ACS's Pre-Placement Services (the "Children's Center"), where children who have been removed from a parent or guardian are brought and medically cleared for placement.
1. Conditions of the Children's Center
The City Defendants describe the Children's Center as having various forms of security, including a metal detector at the main entrance through which children enter, the requirement that all persons entering the building must display an ACS identification badge or sign in at the security desk, and another entrance monitored by a security guard. Also according to the City Defendants, children are present only on the second and third floors, except for when they enter and leave on the first floor; at least one security guard is posted at all times on the second and third floors; nurses' units are on the second and third floors; children and teenagers are always accompanied by a staff member; and if any unaccompanied children or strangers are ever present on the second or third floor, ACS employees and security guards are trained to intervene and contact a supervisor.
Plaintiffs dispute these facts by challenging the sufficiency of the affidavit upon which they rest. Specifically, the City submitted an affidavit of Willie Maye ("Maye"), the Director of Pre-Placement Services at ACS. According to Plaintiffs, Maye's affidavit does not indicate that he had personal knowledge of the ACS facility's conditions as they existed when Antonia was there on January 22-23, 2003, and that the description he provided matches the conditions as they existed on those days. It is true that Maye's affidavit does not expressly state that it is made "on the basis of personal knowledge." However, Maye had been the Director of Pre-Placement Services at ACS since May 22, 2001 and prior to that time and since March 21, 1999 had been Deputy Director. (See Affidavit of Willie Maye, Jr., dated Dec. 1, 2005, ¶ 1, attached as Ex. L to Halbardier Aff.) Maye further indicated that from his position as Director, he was familiar with the management, security, and oversight of children in the facility's care. (Id. ¶ 1.) The Court finds no adequate basis upon which a rational factfinder could reasonably infer that Maye's position -- which he held during the relevant time frame - and his sworn statement that he was familiar with the management and security of the Children's Center would not give him sufficient personal knowledge of the facility. Accordingly, the Court has considered Maye's affidavit.
The ACS employees who directly care for the children at the Children's Center are called childcare workers or "Children's Counselors." According to Maye, prior to working at the Children's Center, these employees prepare an employment application and submit to a criminal background check. Maye also stated that the Children's Counselors are required to undergo training during their employment, including training on signs of child abuse and shaken baby syndrome. They are also cleared through the State Central Register, as are all ACS employees. Although Plaintiffs dispute that the Children's Counselors assigned to Antonia on January 22-23, 2003 had any such training or background checks, other than these conclusory statements, Plaintiffs do not offer any material evidence suggesting otherwise. Plaintiffs also point out that the childcare workers do not receive training prior to employment by ACS, and that the in-house training is "sporadic," consisting of only four sessions in one year that each lasted one and one-half to two hours.
According to the City Defendants, a supervisor is on duty for each shift at the Children's Center; the shifts are 8:00 a.m. to 4:00 p.m., 4:00 p.m. to midnight, and midnight to 8:00 a.m. The supervisor's office is on the third floor. The nursery (for infants) is on the second floor, and children between six to twelve years of age also stay on the second floor, but in a different area. According to the City Defendants, teenagers stay on the third floor. Plaintiffs dispute that teenagers stay only on the third floor and contend that a sixteen-year-old was on the second floor at some point during Antonia's stay. Specifically, an ACS nurse, Carmen Nieves ("Nieves"), who worked at ACS on January 23, 2003, testified that the third floor remains closed until 5:00 p.m., that teenagers are placed on the third floor only if there are "enough teenagers," and that ACS records indicate that on January 23, 2003, a sixteen--year-old was on the second floor at some point to be seen by the nurses, and she did not know what the teenager did after being medically cleared. The deposition testimony on this point is somewhat ambiguous; however, it is clear that at some point on January 23, 2003, the nurses at the Children's Center took vital signs for a sixteen-year-old on the second floor.
According to the City Defendants, a supervisor is present during each shift to address any problems such as sick children or staffing issues; a security guard is stationed between the nursery and the nurse's station; the childcare workers and their supervisors are trained to notify the nurse on duty of any illnesses or problems with a child, are trained to prepare an accident report if any child is injured during a shift, and are trained to report any unusual incidents to their supervisor. Plaintiffs dispute these facts, again on the ground that there is no indication that the affiant, Maye, had personal knowledge of the conditions as they existed on January 22-23, 2003. Plaintiffs also contend that Maye did not indicate that accident reports are required if a child is injured, or that childcare workers actually report any unusual incidents to their supervisors as a matter of custom.
The City Defendants assert that there has never been a report of a "shaken baby" or a serious injury to a child at the Children's Center. Maye, who, as indicated, has been the ACS Pre-Placement Services Director since May 22, 2001, and prior to that time Deputy Director from March 21, 1999, attested that he was not aware of any non-accidental or serious injury at the facility during his tenure. Plaintiffs again claim that there is no evidence that such reports are required.
2. Antonia's Stay at the Children's Center from January 22-23, 2003
Antonia, Alicia, and Mykle arrived at the Children's Center at 8:40 p.m. on January 22, 2003. Rivera and Kinsey stayed with them in the waiting area while paperwork was completed. At about 9:00 p.m., Antonia was brought to the nurse's station on the second floor and examined by Pola Albano ("Albano"), a Certified Pediatric Nurse Practitioner employed at the Children's Center since 1999. The examination ended at about 10:00 p.m. Albano found that Antonia had a fever of 100.2 degrees, which was measured with a rectal thermometer, and a mild upper respiratory infection. She observed no bruises or discoloration on Antonia. Antonia was happy, active and alert, not in distress, sat without support, and was not vomiting or having diarrhea. Albano medically cleared Antonia for placement in a foster home.
Antonia was transferred to the nursery and was logged in at approximately 10:28 p.m. ACS Children's Counselor Stacie Dalrymple ("Dalrymple"), who has worked at the Children's Center for over seven years and whose duties included ensuring the children's safety, as well as bathing, clothing, and feeding them, was on duty in the nursery during the 4:00 p.m. to midnight shift on January 22, 2003. Dalrymple wrote in the Children's Center nursery log book that, according to the nurse, Antonia had a fever and needed a lot of fluids, and that she drank Prosobee. Dalrymple recalled that Albano had instructed her to give Antonia "lots" of fluids but not formula. Although Plaintiffs dispute that Dalrymple received training for her job duties, the deposition testimony to which they point actually indicates that Dalrymple received training.*fn7
Two childcare workers, Milana Maksumov ("Maksumov") and Gertha Charles ("Charles"), who have worked at ACS for four and six years, respectively, were on duty during the midnight to 8:00 a.m. shift on January 23, 2003 and received information about the children in their care from the previous shift workers. They were trained to bring a child experiencing any complications, vomiting, or other suspicious behaviors to the nurse.*fn8 At the end of the shift, Charles's practice was to talk to incoming workers and update them on the children.
According to the City Defendants, during the midnight to 8:00 a.m. shift on January 23, 2003, Antonia slept through the night and was resting comfortably, and the staff observed no cuts or bruises on her. Plaintiffs dispute these facts, asserting that the City Defendants' allegations are based on "unsworn" hearsay "from a non-party with no personal knowledge." (Pl. Rule 56.1 Response (City) ¶ 27.) The document upon which the City Defendants rely is part of a portion of the file maintained by ACS's Office of Confidential Investigations; it is dated January 29, 2003, and consists of a paragraph summarizing the facts just indicated, with the name "Jillian O'Brian" typed underneath, and below that, in handwriting, the words "Staff at Children's Center." Plaintiffs, relying on Charles's own deposition, point out that at the beginning of this shift, Antonia was asleep in a crib, but as of the end of the shift she had been taken from her crib and placed in a stroller. Although Charles does not recall whether Antonia woke from her sleep or was crying during the night shift, according to Charles, crying is at least one reason childcare workers would move a child from a crib to a stroller during the night.
Plaintiffs contend that the Children's Center was understaffed. According to Plaintiffs, there should have been three staff members that night instead of two, the Center was significantly understaffed, Charles's supervisors were aware of this, and it was a condition that existed most of the time. First, Charles indicated that it was a busy night for the two childcare workers because there were nine children at the Children's Center that night, with two childcare workers. A child got sick during the night and had to go to the hospital, and Charles mistakenly wrote down that the child who got sick was Antonia. Charles indicated that this type of mistake "could have been, yeah" the kind that she would make because she was so busy. (Deposition of Gertha Charles, dated June 7, 2005 ("Charles Dep."), attached as Ex. A to Second Vanderpuye Aff.,*fn9 at 47-50.) In addition, Charles testified to the following:
Q: ... [B]ased upon the log, could you tell me how many children were present?
A: Right now, let's see, ... [counting]... 9.
Q: And how many staff member were assigned?
A: We only had two. That's what I'm going to answer, two.
Q: Did you request additional staff that night?
A: I don't have to request them. My supervisor will know, you know, if we are understaffed. If we are under, it's mostly two. We can't help it.
Q: Okay. So if you're understaffed, they only assign two?
A: Yes, they understaffed, but usually we have -- we have the babies, we have the toddlers and we also have the little ones. Mostly there is two staff there. Sometimes we pull them. If I want to take a baby to the nurse or take the baby to change diapers, you know, we will ask one of them to help the other. (Charles Dep. at 9-10.) In addition, Plaintiffs contend, based on Dalrymple's testimony, that in general there should have been a ratio of one staff member to three children at the Children's Center, and thus if there were nine children, there should have been three staff members. The City Defendants point out that Dalrymple described only the 4:00 p.m. to midnight shift this way. In addition, some evidence suggests that several children left during the night, leaving four or five children for most of the shift. (See Log, Jan. 22, 2003, 12:00 AM - 8:00, attached to Ex. K to Halbardier Aff. at NYC 2940.)
Childcare worker Esther Boone ("Boone") worked the next shift (8:00 a.m. to 4:00 p.m.) on January 23, 2003. In a deposition, Boone testified that she has worked at ACS for three years and has received training in connection with her work at the Children's Center. Her duties include monitoring each child to make sure that the children do not hurt themselves, and to read to and interact with them. If a child is vomiting, has diarrhea, or is sick in some other manner, the Center's policies required that the child see the nurse. According to Boone, Antonia was asleep when she came on duty. Boone spoke with Charles, the worker from the previous shift, about the babies.
Boone testified in her deposition that when she arrived at her shift at 8:00 a.m., she was the only childcare worker there. Boone requested assistance from her supervisors, but it is unclear exactly when such assistance arrived. Boone testified that childcare workers Allison Porter ("Porter") and Sybil Deans ("Deans") were sent to assist, and that she obtained help within ten to fifteen minutes. However, other evidence in the record, relied upon by the City Defendants, suggests that Porter did not arrive until 9:50 a.m. It is unclear when Deans arrived. Thus, the record is ambiguous as to how long Boone was ...